SC Lawyer, July 2012, #2. What is a Rule 26(f) Conference and Why Should I Care?.

Author:By Ashley Prickett Cuttino

South Carolina BAR Journal


SC Lawyer, July 2012, #2.

What is a Rule 26(f) Conference and Why Should I Care?

South Carolina LawyerJuly 2012What is a Rule 26(f) Conference and Why Should I Care?By Ashley Prickett CuttinoWhen countless attorneys hear the word "e-discovery," they duck their heads and hide. For many, it is an intimidating subject. Unfortunately for them, it is time to pull back the covers and face the reality that e-discovery is here to stay. This fact was highlighted in the past year when the first e-dis-covery malpractice suit was filed against the Am Law 100 firm McDermott, Will Emory. While the McDermott allegations involve the failure of the law firm to properly supervise and manage contract attorneys performing a document review for privilege, the allegations also emphasize the need for an e-discovery plan when engaging in litigation today. Engaging in a Rule 26(f) conference with opposing counsel is the cornerstone of a good plan.

For practitioners in federal court, e-discovery has been a part of routine practice since the Federal Rules of Civil Procedure were amended in 2006. In South Carolina, the state court rules of civil procedure were modified in 2011. The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure.

One of the major requirements in the federal court rules is that attorneys participate in a Rule 26(f) conference. Under state court rules, a Rule 26(f) conference is held at the option of the court or by request of the parties. The goal of the Rule 26(f) conference is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics, including electronically stored information (ESI). The Federal Rules of Civil Procedure specify that the attorneys:

* must meet to discuss issues concerning the preservation of discoverable information; and * develop a proposed discovery plan.

This requires that attorneys be aware of the location of discoverable data, be knowledgeable about their own client's ESI and be prepared to ask questions about the other side's ESI.

Most practitioners have participated in these conferences before. What many have not done is use them to their legal advantage in the realm of e-discovery. A Rule 26(f) conference is the perfect opportunity to strategically limit or expand the world of documents, and specifically ESI, that will be preserved, collected, reviewed and ultimately produced in a case. Knowledgeable practitioners can use the Rule 26(f) conference to limit the amount of e-discovery that will be preserved, collected and reviewed. For corporate defendants, this can radically reduce the potential costs of the litigation. For plaintiffs, this can cause a limitation on the discovery that may be available to them later in the case. Simply put, the goal of the Rule 26(f) conference on both sides should be to minimize the time and cost of discovery while still ensuring that you will obtain the relevant, responsive information you need from opposing counsel to effectively litigate your case.

Compromise is Key

One of the primary goals of a Rule 26(f) conference is to attempt to get the parties to agree on the "world" of documents that may be relevant to a case. Many attorneys are reluctant to place limits on this type of information early in litigation. This is a mistake. Limitations may be set within reason and may have exclusions that allow for expansion if relevant data is not located within the...

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